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Tuesday, February 28, 2017

SINCE YOU ASKED: ILLINOIS RULE OF PROFESSIONAL CONDUCT 3.6

RULE 3.6: TRIAL PUBLICITY

(a) A lawyer who is participating or has participated in
the investigation or litigation of a matter shall not make an extrajudicial
statement that the lawyer knows or reasonably should know will be disseminated
by means of public communication and would pose a serious and imminent threat
to the fairness of an adjudicative proceeding in the matter.

(b)
Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or
defense involved and, except when prohibited by law, the identity of the
persons involved;

(2) information contained
in a public record;

(3) that an investigation
of a matter is in progress;

(4) the scheduling or
result of any step in litigation;

(5) a request for
assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger
concerning the behavior of a person involved, when there is reason to believe
that there exists the likelihood of substantial harm to an individual or to the
public interest; and

(7) in a criminal case, in
addition to subparagraphs (1) through (6):

(i) the identity, residence,
occupation and family status of the accused;

(ii) if the accused has not
been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and
place of arrest; and

(iv) the identity of
investigating and arresting officers or agencies and the length of the
investigation.

(c)
Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable
lawyer would believe is required to protect a client from the substantial undue
prejudicial effect of recent publicity not initiated by the lawyer or the
lawyer’s client. A statement made pursuant to this paragraph shall be limited
to such information as is necessary to mitigate the recent adverse publicity.

(d)
No lawyer associated in a firm or government agency with a lawyer subject to
paragraph (a) shall make a statement prohibited by paragraph (a).

Adopted
July 1, 2009, effective January 1, 2010.

Comment

[1]
It is difficult to strike a balance between protecting the right to a fair
trial and safeguarding the right of free expression. Preserving the right to a
fair trial necessarily entails some curtailment of the information that may be
disseminated about a party prior to trial, particularly where trial by jury is
involved. If there were no such limits, the result would be the practical
nullification of the protective effect of the rules of forensic decorum and the
exclusionary rules of evidence. On the other hand, there are vital social
interests served by the free dissemination of information about events having
legal consequences and about legal proceedings themselves. The public has a
right to know about threats to its safety and measures aimed at assuring its
security. It also has a legitimate interest in the conduct of judicial
proceedings, particularly in matters of general public concern. Furthermore,
the subject matter of legal proceedings is often of direct significance in
debate and deliberation over questions of public policy.

[2]
Special rules of confidentiality may validly govern proceedings in juvenile,
domestic relations and mental disability proceedings, and perhaps other types
of litigation. Rule 3.4(c) requires compliance with such rules.

[3]
The Rule sets forth a basic general prohibition against a lawyer’s making
statements that the lawyer knows or should know would pose a serious and
imminent threat to the fairness of an adjudicative proceeding. Recognizing that
the public value of informed commentary is great and the likelihood of
prejudice to a proceeding by the commentary of a lawyer who is not involved in
the proceeding is small, the Rule applies only to lawyers who are, or who have
been involved in the investigation or litigation of a case, and their
associates.

[4]
Paragraph (b) identifies specific matters about which a lawyer’s statements
would not ordinarily be considered to pose a serious and imminent threat to the
fairness of an adjudicative proceeding, and should not in any event be
considered prohibited by the general prohibition of paragraph (a). Paragraph
(b) is not intended to be an exhaustive listing of the subjects upon which a
lawyer may make a statement, but statements on other matters may be subject to
paragraph (a).

[5]
There are, on the other hand, certain subjects that would pose a serious and
imminent threat to the fairness of a proceeding, particularly when they refer
to a civil matter triable to a jury, a criminal matter, or any other proceeding
that could result in incarceration. These subjects relate to:

(1) the character,
credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a witness, or the expected
testimony of a party or witness;

(2) in a criminal case or
proceeding that could result in incarceration, the possibility of a plea of
guilty to the offense or the existence or contents of any confession,
admission, or statement given by a defendant or suspect or that person’s refusal
or failure to make a statement;

(3) the performance or
results of any examination or test or the refusal or failure of a person to
submit to an examination or test, or the identity or nature of physical
evidence expected to be presented;

(4) any opinion as to the
guilt or innocence of a defendant or suspect in a criminal case or proceeding
that could result in incarceration;

(5) information that the
lawyer knows or reasonably should know is likely to be inadmissible as evidence
in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial; or

(6) the fact that a
defendant has been charged with a crime, unless there is included therein a
statement explaining that the charge is merely an accusation and that the
defendant is presumed innocent until and unless proven guilty.

[6]
Another relevant factor in determining prejudice is the nature of the
proceeding involved. Criminal jury trials will be most sensitive to
extrajudicial speech. Civil trials may be less sensitive. Nonjury hearings and
arbitration proceedings may be even less affected. The Rule will still place
limitations on prejudicial comments in these cases, but the likelihood of
prejudice may be different depending on the type of proceeding.

[7]
Finally, extrajudicial statements that might otherwise raise a question under
this Rule may be permissible when they are made in response to statements made
publicly by another party, another party’s lawyer, or third persons, where a
reasonable lawyer would believe a public response is required in order to avoid
prejudice to the lawyer’s client. When prejudicial statements have been
publicly made by others, responsive statements may have the salutary effect of
lessening any resulting adverse impact on the adjudicative proceeding. Such
responsive statements should be limited to contain only such information as is
necessary to mitigate undue prejudice created by the statements made by others.